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Two Year Work Permits for Spouses of Abusive H-1B Visa Holders Now Available

April 5, 2018

Until recently, the majority of H-4 visa holders (derivative spouses of H-1B professional visa holders) were dependent on their H-1B spouses for income and for many, their survival. Since 2015, H-4 visa holders have been permitted to work in the United States if they meet one of two very limited criteria. However, most H-4 visa holders do not; this created a dependent relationship between the H-4 visa holder and his or her spouse, which sometimes resulted in a fertile ground for abuse and control exercised by the H-1B visa holder over their H-4 spouse. Without an independent income, the H-4 spouse couldn’t afford to file for divorce, receive custody of minor children, or leave an abusive relationship. Further, if an H-4 visa holder lost his or her status through divorce from their H-1B visa holder, the H-4 visa holder was left with no visa, no status, and no work permit.

Fortunately, recent implementation of the Violence Against Women Act’s (“VAWA”) 2005 provisions has provided a way for H-4 visa holders to earn a living. USCIS will now accept applications for 2-year work permits by H-4 visa holders if the H-4 spouse can prove:

S/he last entered the U.S. in H-4 status;

S/he currently resides in the U.S.;

S/he was subject to extreme cruelty during marriage to an H-1B visa holder; and

S/he entered into a bona fide relationship with an H-1B visa holder, not a marriage entered into for an immigration benefit.

Notably absent from these requirements is a need to show that the applicant is a person of good moral character who is deserving of USCIS discretion. This eliminates the burdensome requirement to obtain background checks from every country and U.S. state where the H-4 visa holder has lived in recent years. This should expedite application processing times and allow H-4 visa holders to assemble and file their applications quickly without having to wait for the results of background checks. That being said, H-4 visa holders must still be vigilant about staying out of trouble, including avoiding arrest and entering into criminal pleas without first consulting with a criminal immigration attorney. In 2017, the Department of State reported that consulates are sending letters rescinding or cancelling already-issued visas for nonimmigrant visa holders with arrests, even if the individuals were not convicted of a crime.

The H-4 work permit requirements also do not require that the H-4 visa holder still resides with his or her abusive H-1B spouse. This protects the H-4 visa holder from staying in a potentially dangerous situation because of financial dependence and for the benefit of retaining his or her status.

Unfortunately, an H-4 visa holder may be much more at risk of violence from his or her spouse if s/he does leave, a sobering fact that has been repeatedly demonstrated in domestic violence statistics in the U.S. for years. For this reason, Congress did not require H-4 visa holders to either stay or leave their abusers to obtain this work permit benefit. Rather, s/he does what is in his/her best safety interests. The logistics in these situations can be quite difficult, however immigration lawyers can help in these cases. Immigration lawyers can protect the confidentiality of the H-4 work permit filing (if the H-4 visa holder does decide to stay with the abuser). USCIS permits applicants to use their lawyer’s address or another safe address for the filing that is not the home address of the H-4 and H-1B visa holders. All USCIS correspondence including receipts, approval notices, and the actual employment authorization card are then directed to the lawyer’s address or other safe address for the protection of the H-4 visa holder.

Renewals

If approved, the H-4 visa holder is granted a 2-year work permit. S/he is also eligible for a renewal of this work permit in 2-year increments as long as s/he can continue to meet the eligibility requirements. Upon renewal, the H-4 visa holder no longer has to demonstrate the extreme cruelty element.

Divorce

What happens when the H-1B visa holder divorces the H-4 spouse? The good news is that USCIS will still renew the H-4 work permit if the final divorce decree is less than 2 years old by the time the renewal is filed. The bad news is that divorce starts a ticking clock for the H-4 visa holder – it sets into motion an end date to the work permit benefit for the divorced H-4. In this situation, the H-4 visa holder can only hope to use this time to figure out another route to stay in the U.S., or wrap up his or her affairs in the U.S. and return home. If the divorce is more than 2 years old, a second renewal will not be granted.

The confusion remains as to what immigration status the H-4 spouse has if s/he is divorced. USCIS will grant a work permit within that first two years but policy says nothing as to the underlying visa status of the H-4. By operation of law, the H-4 loses her or her visa status automatically when a divorce is finalized to the H-1B visa holder. If s/he travels abroad after the divorce but with a valid H-4 visa in his/her passport and a pending work permit application, how will the consulate view his/her status if s/he needs to renew his/her H-4? Will s/he be eligible for visa re-stamping in H-4 status? The answer is likely no. Current USCIS policy does not specifically address visa issuance and only provides guidance as to work permits, which are only granted if the H-4 spouse’s last entry is on an H-4 visa and s/he is still residing in the U.S. This implies that the divorced H-4 is treated not as holding a valid visa but instead is treated as a deferred action recipient, a state that keeps the H-4 spouse from accruing unlawful presence during the time s/he is in the U.S. (for purposes of the 3 and 10 year bars) but does not provide valid continuous status.

If H-4 status is automatically terminated due to divorce, this also leaves open the question as to whether a change of status application from an H-4 visa to another visa type while in the U.S. is even possible for a divorced H-4 spouse. Deferred action is not typically viewed as “lawful status” for purposes of the continuation of status that is needed to transfer from one visa type to another. Therefore, the H-4 applicant would have to interview abroad at a consulate for a new visa type.

With lengthy immigrant visa backlogs for employment-based categories, an H-4 who is staying in an abusive relationship with the H-1B visa holder and hoping it will get better may not see this as a realistic or safe tactic. The upside is that as long as the H-1B visa is continually renewed with an underlying backlog of their green card case, the H-4 visa holder is eligible for a work permit. But this new H-4 work permit and deferred action gives the H-4 visa holder the choice of being able to leave their abusive without risking fear of being deported or being stuck in the U.S. without the ability to work. If the H-1B visa holder is finally able to adjust status to lawful permanent residence but does not want to include the H-4 spouse, the H-4 spouse may still be able to obtain legal permanent residence under VAWA’s Immigrant Visa provisions.

Contact us for a case evaluation today about your current H-4 status and options. You are not alone in this. For safety planning, counseling contacts, and help with shelter placement if you do need to leave, contact the National Domestic Violence Hotline for help: 800-799-SAFE.